42 S.C. 431 | S.C. | 1894
The opinion of the court was delivered by
On the 5th of June, 1891, the respondents filed their petition, stating, amongst other things, that the appellant had constructed its railway across a lot of land in the town of Newberry, belonging bo petitioners; “and that the said right of way was taken and occupied without the consent of the said owners, and not in the manner provided by law;” and after alleging that the railway had been completed over said land within the period of a year prior to the filing of the petition, and that petitioners had never received any com
No further steps seem to have been taken in the matter, for the reason, as alleged by the petitioners, that negotiations for a settlement without resort to legal proceedings were pending. On the 2d of November, 1893, appellant, upon an affidavit made by the president of the defendant company, in which, amongst other things, it was stated that he was advised that the petition did not set forth the necessary jurisdictional facts, “in that it alleges that the said right of way was taken and occupied without the consent of the said owners;” whereas the law only provides for a proceeding of this kind where the owner of the land permits the company to enter upon the construction of its railway without previous compensation (another ground was also stated, but as it was abandoned at the hearing, it need not be set forth here), applied for and obtained from Judge Wallace a rule requiring the petitioners to show cause before him why his order of the 8th of June, 1891, should not be vacated. To the rule the petitioners made a return, supported by an affidavit of one of their counsel, and upon these papers, together with an affidavit of the president of the defendant company, the motion was heard by Judge Wallace, who, without assigning any reasons, granted an order on the 3d of November, 1893, refusing the motion and discharging the rule.
Inasmuch as there is nothing in the record to show that the Circuit Judge held, as is imputed to him, in the first ground of appeal, that ground could not be sustained. But as the same question is practically made by the second ground of appeal, this will make no real difference to the appellant.
But the appellant contends, that inasmuch as the petition shows on its face that the land for the right of way was taken “without the consent” of the owners, that it fails to show that the petitioners are entitled to institute this proceeding under sec. 1558. But it will be observed that the language used in that section is different from that used in secs. 1550 and 1551. In these two sections the word used is “consent;” and it is manifest that the legislature was providing for cases in which the landowner signified his consent, either expressly or pre